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Court Holds That Debtor Can Not Orally Revoke Consent to Be Contacted On A Cellular Telephone

October 4, 2010

Law Firm: Hinshaw & Culbertson LLP - Chicago Office

The U.S. District Court for the Western District of New York recently held that a debtor cannot orally revoke consent to be contacted on a cellular telephone. Plaintiff debtor provided a cable company with her cellular telephone number when she signed up for service. Her account later went into default and the cable company turned the matter over to a debt collector. The debt collector placed automated calls to the debtor’s cell phone. After receiving approximately 10 automated calls, the debtor returned the call and spoke to a live operator. During this initial conversation, the debtor claimed that she had asked the debt collector to stop calling her. The debt collector’s records showed no such request, and the debtor never sent a letter to the debt collector requesting that the debt collection calls stop. The debt collector continued to call the debtor’s cell phone until she agreed to a payment plan. The debtor subsequently sued, alleging that the debt collector violated the Fair Debt Collection Practices Act (FDCPA) and the Telephone Consumer Protection Act (TCPA) by calling her cell phone after she orally revoked her consent.

The court granted summary judgment in favor of the debt collector. In regard to the FDCPA claim, the court held that “[i]t is irrelevant whether plaintiff made a verbal request to defendant to cease the debt collection calls, the statute explicitly provides for notice in writing and such notice, in writing, was never provided.” Therefore, the debtor’s admission that she failed to notify the debt collector in writing defeated certain claims that she alleged under the FDCPA.

As for the debtor’s TCPA claims, the court held that debt collection calls are not subject to the act’s separate restrictions on telephone solicitations. In explaining its holding the court stated:

[a]lthough the TCPA has some application to the instant case as defendant was placing prerecorded automated calls to plaintiff’s cellular telephone, Congress has clearly stated that debt collection efforts are governed by the FDCPA. Thus, plaintiff’s attempt to infer that a verbal request to cease debt collection calls is sufficient under the TCPA and that any subsequent calls are in violation of the TCPA misses the mark. To cease debt collection calls, written notice is required.

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.

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